Escolar Documentos
Profissional Documentos
Cultura Documentos
3d 989
the complaint.
BACKGROUND
2
After some of the plaintiffs filed state habeas corpus petitions, the plaintiffs
filed this action under 42 U.S.C. Sec. 1983, seeking declaratory relief against
Gale Norton, the Attorney General of Colorado, and damages from Frank
Gunter, the Executive Director of the DOC. The defendants moved to dismiss
on several grounds. The district court accepted the magistrate judge's
recommendation to dismiss because the earned-time statute did not apply
retroactively.
DISCUSSION
4
Although the district court dismissed the complaint on the merits, we may
affirm on any grounds supported by the record. Griess v. Colorado, 841 F.2d
1042, 1047 (10th Cir.1988). We do not decide whether the earned-time statute
requires a retroactive increase in Duncan's earned-time credits, because
Colorado courts should have the first chance to decide that question. Instead we
affirm because the defendants are immune from an action for damages and
because the requested declaratory or injunctive relief may be sought only in a
petition for a writ of habeas corpus.
I. Declaratory Relief
5
Duncan also requests damages from Frank Gunter, in both his official and
individual capacities. Compl. at 5-6. Duncan may properly seek damages in a
section 1983 action rather than in habeas. See Wolff v. McDonnell, 418 U.S.
539, 554-55, 94 S.Ct. 2963, 2973-74, 41 L.Ed.2d 935 (1974). However, he may
not use a damages claim under section 1983 to avoid the habeas exhaustion
requirement. If deciding a damages claim under section 1983 would also decide
the validity of the plaintiff's confinement, we should stay the section 1983
action pending exhaustion of state judicial remedies, so that the state courts
may first consider whether the plaintiff is entitled to speedier release. See
Young, 907 F.2d at 876-78; Offet v. Solem, 823 F.2d 1256, 1258-61 (8th
Cir.1987); Richardson v. Fleming, 651 F.2d 366, 373 (5th Cir.1981). In this
case, however, we can dispose of Duncan's section 1983 damages claim
without preventing Colorado courts from first deciding whether Duncan is
entitled to a speedier release. We do not need to decide whether Colorado law
requires retroactively awarding earned-time credits to Duncan, because Gunter
clearly is not subject to a section 1983 damages claim in his official capacity
and is immune from a damages claim in his individual capacity.
Neither states nor state officers sued in their official capacity are "persons"
subject to suit under section 1983. Will v. Michigan Dep't of State Police, 491
U.S. 58, 70-71, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989). Duncan therefore
may not seek damages from Gunter in his official capacity.
However, state officers sued in their individual capacities are "persons" subject
to suit under section 1983. Hafer v. Melo, --- U.S. ----, ----, 112 S.Ct. 358, 365,
116 L.Ed.2d 301 (1991). The Eleventh Amendment does not bar such a suit
because state officers may be personally liable for their unconstitutional acts.
Houston v. Reich, 932 F.2d 883, 887 (10th Cir.1991).
Nevertheless, Gunter has qualified immunity in this case. State officers sued in
When Gunter and the DOC did not award retroactive earned-time credits under
section 406(1)(b), no court had interpreted that section. As the recommendation
of the magistrate judge demonstrates, one may reasonably interpret the statute
to forbid retroactive increases in earned-time credits awarded before 1990.
Even if the statute does permit retroactive awards, it does not clearly make such
awards mandatory. In fact, the statute seems to say that any grants of earnedtime credits under the new statute are discretionary. See Colo.Rev.Stat. Sec. 1722.5-405(3) ("[T]he department shall review the performance record of the
inmate ... and may grant, withhold, withdraw, or restore, consistent with the
provisions of this section, an earned time deduction...."). If so, denying an
increase in earned-time credits under the new statute would not have deprived
Duncan of a liberty interest. See Kentucky Dep't of Corrections v. Thompson,
490 U.S. 454, 463, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989). Because the
law did not clearly prohibit the decision to deny retroactive earned-time credits,
Gunter is immune from damages in his individual capacity.2
11
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. This cause is
therefore ordered submitted without oral argument
Although the caption of the notice of appeal lists all five plaintiffs, only
Duncan signed the notice. The district court subsequently ruled that Duncan
could not represent the other plaintiffs on appeal. We therefore refer only to
Duncan, although our decision would be the same even if all five plaintiffs had
appealed
2
The plaintiffs' complaint also alleged that the defendants had conspired to
discriminate against the class of prisoners who were sentenced for crimes
committed between 1979 and 1990. The magistrate judge's recommendation did
not address the equal protection claim, nor have the plaintiffs mentioned it in
their objections to the magistrate's recommendation or on appeal. Nevertheless,
we note that the plaintiffs have not pointed out any law clearly establishing that
increasing benefits to all prisoners only prospectively violates equal protection